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09/23/94 PEOPLE STATE ILLINOIS v. CLIFFORD ANDERSON

September 23, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
CLIFFORD ANDERSON, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 86CR16841. Honorable Michael P. Toomin, Judge Presiding

As Corrected October 17, 1994. Petition for Leave to Appeal Denied February 1, 1995.

Gordon, McNULTY, Cousins

The opinion of the court was delivered by: Gordon

JUSTICE GORDON delivered the opinion of the court:

Defendant, Clifford Anderson, was charged by indictment with various counts of murder and armed violence. *fn1 At the Conclusion of a jury trial, the Defendant was found guilty of two counts of murder and two counts of armed violence for the murders of Robert Williams and Mack Sutton and was sentenced to natural life.

On appeal the Defendant raises several issues. They are: (1) whether he was denied due process because several jury instructions were denied, improperly given over his objection, or not given sua sponte by the trial court; (2) whether he was denied due process and effective assistance of counsel when his defense counsel refused to abide by Defendant's decision not to present an insanity defense; (3) whether the prosecution erroneously presented a previously undisclosed admission of the Defendant; (4) whether the Defendant was denied the right of confrontation; 5) whether the trial court erroneously denied Defendant a fitness hearing; (6) whether the Defendant was improperly prevented from presenting relevant testimony; (7) whether the jury selection was improper; (8) whether improper and prejudicial prosecutorial acts occurred at trial; and (9) whether during closing argument defense counsel improperly was prevented from disclosing the consequences of a finding of not guilty by reason of insanity. *fn2

[The following material, labeled "Background," is nonpublishable under Supreme Court Rule 23.]

BACKGROUND

At trial, the State presented the testimony of various witnesses. The testimony relevant to the issues raised in this appeal is as follows.

Michael Dudley testified that, on September 5, 1978, he was in his second floor apartment at 300 West North Avenue, when at approximately 11:00 a.m., he looked out of his window and saw Mack Sutton, the engineer of the building, standing on a concrete block in the back of the building. He also saw the Defendant, who was the janitor of the building, walking towards Sutton holding a small revolver. Dudley stated that the Defendant shot Sutton from a distance of approximately one or two feet; and, at the time of the shooting, Sutton was looking out towards the playground and was not holding anything in his hands. After the Defendant shot Sutton, he walked toward the building and looked at Dudley who was standing at his window just a few feet from where the Defendant was walking.

Dudley further testified that he then took the elevator downstairs to get his children away from the playground; and, as he reached the first floor, he heard a shot. He remained in the elevator for a few seconds; and, as he exited, he saw the Defendant in the hallway. After Dudley returned to his apartment with his children, he saw a taxicab driver walking towards Sutton's body. He also saw the Defendant exit the building and heard the Defendant tell the cab driver to get away from Sutton. The cab driver returned to his cab and drove away. The Defendant re-entered the building. Dudley went back to the lobby and saw the Defendant leave the building carrying a paper bag. The police immediately arrived and arrested the Defendant.

Joann Colliflower testified that she was being trained by Robert Williams, the second victim, to become manager of the building located at 300 West North Avenue. During her month-long training, she would see the Defendant performing janitorial duties; and she had a conversation with him when he changed the light bulb in her apartment. She said the Defendant was responsive and that there was nothing abnormal about his appearance or demeanor.

Colliflower stated that, on September 5, 1978, at approximately 11:00 a.m., she and Williams were in the first floor office. Williams was completing a telephone conversation when the Defendant approached the door and called "Bob." Williams looked up at the Defendant who was standing in the doorway holding a gun. The Defendant then shot Williams in the head and left the office. As Colliflower grabbed a cushion from a chair, the Defendant walked back into the office holding his arm out with the gun in his hand. The witness heard the gun click and pleaded with the Defendant not to shoot her. The Defendant then dropped his arm, turned around and walked out of the office.

James Tucker, a Chicago police officer at the time of trial, testified that on September 5, 1978, the date of the shootings, he was working as a taxicab driver. Between the hours of 11:00 a.m. and 12:00 p.m., he was driving north on North Park near North Avenue when he saw a man laying on the ground near the rear of the building. He stopped his taxicab and went to assist the man. As he leaned over the body, the Defendant approached holding a small automatic revolver in his hand. The Defendant told Tucker to leave. Tucker returned to his cab and drove in the direction of North Avenue where he found an unmarked police car and uniformed police officers.

Tucker further testified that, as he was getting into the police car, he saw the Defendant come out of the front of the building carrying a brown paper bag which the Defendant dropped on the ground after the officers ordered Defendant to come to their car. The Defendant told the officers that a gun was in the bag and that "I shot both of them." The officers checked the paper bag and it contained the same gun that Defendant previously had pointed at Tucker.

During cross-examination of Tucker, the trial court sustained the State's objection to defense counsel's line of questioning regarding the reason Tucker was no longer employed as a taxicab driver.

Kenneth Riess, a Chicago police officer, corroborated Tucker's testimony. He stated that the Defendant dropped the brown paper bag he was carrying after he was told to do so by the officers. He indicated that the Defendant stated "I shot 'em. I shot 'em both dead," as they handcuffed him. Riess further testified that they accompanied the Defendant to the rear of the building where they found Sutton on the pavement unresponsive and bleeding from the mouth. The Defendant told them that there was another man inside the building. They entered the building and attempted to open the office door but it was locked. After they identified themselves, the woman inside, Joann Colliflower, opened the door. Williams was behind a desk in the office, motionless and bleeding from the head.

Riess stated that during the time he spoke to the Defendant, the Defendant did not appear to be under the influence of drugs or alcohol; he did not have a glazed look; he did not appear to be acting abnormal and he spoke in a coherent manner. In Officer Riess' opinion, the Defendant was acting normal on September 5, 1978.

Chicago police sergeant Charles Stella testified that, on September 2, 1978, he and his partner answered a disturbance call at 300 West North Avenue. Upon entering the manager's office, the officer saw Williams and the Defendant. Williams stated that he had fired the Defendant; and the Defendant said, "You can't fire me." The Defendant left the office after he was told to do so by Officer Stella. Stella testified that, although the Defendant appeared upset, he seemed normal. *fn3

After the State rested its case, Doctor Jerome Katz, a forensic psychiatrist, testified against the Defendant's wishes. He stated that he had examined the Defendant in September of 1981 at the request of Defendant's defense attorney. Based upon a two-hour examination of the Defendant, a review of the Defendant's records from the Psychiatric Institute, and an EEG test, Doctor Katz concluded that the Defendant was suffering from paranoia. He based this Conclusion on the Defendant's belief that the 300 West North Avenue building was being converted into condominiums, that people were being evicted and that he was the only one who could save the tenants and the building. The Defendant also was very suspicious and felt that people were "out to get him, harm him, kill him, cheat him." The Defendant falsely believed he had a warm, loving, close-knit family; when, in fact, his mother ran away from home and died in a mental hospital; and his brother and uncle allegedly were in state mental hospitals.

Doctor Katz opined that, based on a diagnosis of paranoia and a passive/aggressive personality disorder, the Defendant could not conform his conduct to those of society on September 5, 1978 and that, on that date, the Defendant was not sane.

During cross-examination, Doctor Katz admitted that the three-year time span from the time of the killings until the date of his examination of the Defendant would make it difficult to reach an opinion of sanity. He admitted that he did not speak to any of the eyewitnesses to the killings or to the investigating police officers and that he did not perform any psychological testing on the Defendant. Doctor Katz further admitted that he was the only doctor to find the Defendant insane on September 5, 1978; and that, every time he testifies in court, his finding is that the defendant is insane or unfit to stand trial. Doctor Katz stated that the only time the Defendant could not conform his conduct to the requirements of the law was when he pulled the trigger of the gun, which was an act of venting his anger.

Douglas Longhini testified that on September 5, 1978, while he was employed by WLS-TV as a researcher for "Target 7," he received a telephone call from the Defendant who told him that there were problems at an FHA subsidized apartment building. The Defendant was angry with the managers because of alleged corruption. On cross-examination, Longhini stated that the Defendant had not told him that he had been fired from his position at the building. He also indicated that the Defendant spoke in coherent sentences during their conversation.

Woodward Jordan, president of the board of directors for the building cooperative at 300 West North Avenue, testified that the management company for that building could only fire people "through the board."

Ora Russell, a tenant at the 300 West North Avenue building and Defendant's roommate since 1977, testified that on September 5, 1978, at approximately 6:00 a.m., the Defendant came to Russell's room and was upset. He believed the Defendant had been fired by the manager of the building. Pursuant to Defendant's request, Russell made several telephone calls, including calls to the Defendant's union and to WLS-TV. The Defendant did not talk on the telephone, except during the call to his union, because he as too upset. On cross-examination, Russell admitted that, apparently after the union returned his call, the Defendant slammed the telephone down, went into the bedroom and picked up the gun previously identified as the gun recovered at the scene of the killings. Russell stated that, before leaving the apartment, the Defendant said "he was going to kill them." Russell heard gun shots a few minutes later.

The Defendant testified on his own behalf. He stated that Sutton and Williams had sabotaged the boilers, causing the fuel bill for the building to be exorbitant, and that they were trying to raise the rents of various tenants and to "extract" others. The Defendant stated that he was asked to sit in on the board of directors meetings for the building cooperative and that after a board meeting on September 4, 1978, Sutton, Williams and the then-president of the board (Jordan had retired) told him that he was "messing up everything;" that the building was going to become a condominium; and that they were being offered $25,000 each to disrupt the building by raising rents and forcing out tenants. The Defendant testified that he was given the same offer but that he refused. He stated that he went back to work and subsequently Williams and Sutton called him to the office. During a conversation with them, Williams grabbed the Defendant, slammed him against the wall, choked him, kicked him in the ribs, shouted obscenities, and told him they were going to kill him. The Defendant then went to his apartment and told Russell that he was having trouble with Sutton "and them" and that he had been fired. (1059-62)

The Defendant further testified that the next morning he and Russell made five or six telephone calls, including a call to Mr. Longhini, and wrote letters but that no one would help him. He then went downstairs and found Williams and Sutton in the lobby. Williams began a Discussion about bribe money, offering the Defendant $50,000; and Sutton shoved the Defendant, and the Defendant shoved him back. He stated that Sutton then went out the door and Williams went to his office. The Defendant also stated that, while he was standing in the driveway, Williams and Sutton stood on the loading dock and told Defendant they were going to kill him.

The Defendant stated that, about an hour later, while he was working, Sutton came through the door with a bag in his hand. After Sutton pulled a gun out of the bag, he and the Defendant "tussled" over the gun and the gun went off three times. Sutton fell to the ground, and the Defendant proceeded to walk toward the elevator with the gun in his hand. He did not realize he was carrying the gun. When he reached the lobby, the Defendant began yelling at two men who were smoking marijuana. One of the men shoved the Defendant, causing him to stagger, and the gun went off accidentally. Then, a Mrs. Point ran screaming out of Williams' office. The Defendant turned and saw that Williams was slumped over his desk.

The Defendant admitted that he aimed the gun at Ms. Colliflower as a reflex when she went to grab for a pillow, but that he put the gun down, turned around and left the office. The Defendant stated that he returned to where Sutton was laying and told a taxicab driver who was near Sutton not to touch him. He said he then went back to his apartment, washed his face, told Russell there had been a shooting, went back down the elevator, walked out the front door down the sidewalk and heard someone calling him. He then dropped the brown bag and was arrested.

On cross-examination, the Defendant admitted that Williams and Sutton tried to fire him a few days prior to the shootings and that he probably did tell Ora Russell that he was going to kill Williams because he was very angry after they beat him up. Defendant denied he carried a gun outside his apartment in order to kill Williams. He stated that he picked up the gun after Sutton had been shot because he had Williams on his mind and because he was afraid of Williams. He maintained that Williams was shot in the head by accident when the gun went off as the Defendant struggled in the lobby with a man smoking marijuana. He denied knowing that Williams' last day as manager of the building was September 5, 1978; and admitted that "more than likely" he pointed the gun at the cab driver but knew that it would have been against the law had he fired the gun at the cabdriver. He also denied that he told the police officer that he had just shot Williams and Sutton.

The State, in rebuttal, called Doctor Gerson Kaplan as a witness. Doctor Kaplan testified that on May 21, 1979 he conducted an examination of Defendant to determine Defendant's mental state at the time of the shootings. After reviewing various reports and performing certain psychological tests on Defendant, Doctor Kaplan determined that the Defendant had a passive/aggressive personality with anti-social features but that on the day of the shootings Defendant was able to appreciate the criminality of his conduct and could conform his conduct to the requirements of the law. The Defendant had a non-organic personality disorder which gave him difficulty in dealing with anger and did not allow him to show remorse for inappropriate or wrongful behavior. This personality disorder was not the product of a mental disease or defect.

Doctor Kaplan further testified that he examined the Defendant in February of 1981 and concluded that the Defendant continued to have a passive/aggressive anti-social personality but with additional paranoid features. Defendant continued to be easily angered and did not trust people.

At the Conclusion of the trial, the jury found the Defendant guilty of two counts of murder and two counts of armed violence with respect to the deaths of Williams and Sutton. The Defendant appeals these convictions.

[The preceding material, labeled "Background," is nonpublishable under Supreme Court Rule 23.]

I.

The Defendant's first argument on appeal is that he was denied due process because several jury instructions were denied, improperly given over Defendant's objection or not given sua sponte by the trial court. Initially, the Defendant contends that the trial court committed error with respect to his conviction of the murder of Sutton when it refused to give a voluntary manslaughter instruction and to amend the murder instruction accordingly.

The Defendant argues that a voluntary manslaughter instruction should have been given with respect to Sutton's death because the evidence presented at trial could support a jury finding that he either acted in the unreasonable belief of justification or acted under a sudden and intense passion caused by adequate provocation (Ill. Rev. Stat. 1977, ch. 38, par. 9-2; cf. 720 ILCS 5/9-2 (West 1992) (voluntary manslaughter replaced by second degree murder)). The evidence, solely based upon his own testimony, was that ...


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